Winslow v. People
| Decision Date | 15 May 1886 |
| Citation | 7 N.E. 135,117 Ill. 152 |
| Parties | WINSLOW v. PEOPLE, for Use, etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from First district.
This is an action of debt brought by the people of the state of Illinois, for the use of Ida G. Walrath, against Chauncey T. Bowen, George S. Bowen, and Almerin H. Winslow, upon a guardian's bond dated December 10, 1867, and executed by Chauncey T. Bowen as guardian of Ida G. Walrath, May N. Walrath, and Daniel E. Walrath, and by George S. Bowen and Almerin H. Winslow as sureties thereon. The bond was approved by the county court of Cook county on the day of its date. George S. Bowen filed a plea of discharge in bankruptcy, the issue upon which was found in his favor. Winslow pleaded non et factum and nil debet. Trial was had without a jury before one of the judges of the superior court of Cook county. The issues were found for the plaintiff below, and the debt assessed at $20,000, the penalty of the bond and the damages at $3,794.39, upon which finding judgment was entered. The case was taken to the appellate court of the First district by writ of error, issued therefrom, and the judgment of the superior court was there affirmed. The case is brought to this court by appeal from said appellate court.
The first point made by appellant is that Chauncey T. Bowen was appointed guardian of three minors, and gave bond for the performance of his duties as such guardian; that one of his wards, May N. Walrath, died on November 17, 1871, and thereby his appointment as guardian of the three ceased; that, although he continued thereafter to act as guardian of Ida and Daniel, the two survivors, separately, the condition of the bond did not cover his conduct in the latter capacity. This position is wholly untenable. The obligee in the bond is ‘the people of the state of Illinois, for the use of Ida Gazelle Walrath, May N. Walrath, and Daniel Eddy Walrath, minors.’ The condition of the bond is as follows:
‘If the above-bounden Chauncey T. Bowen, who has been appointed guardian of Ida Gazelle Walrath, May N. Walrath, and Daniel Eddy Walrath, shall faithfully discharge the office and trust of such guardian according to law, and shall render a fair and just account of his said guardianship to the county court of Cook county from time to time, as he shall be thereto required by said court, and to comply with all the orders of said county court lawfully made, relative to the goods, chattels, and moneys of such monors, and render and pay to such minors all moneys, goods, and chattels, titles, papers, and effects, which may come to the hands or possession of said guardian belonging to such minors, when such minors shall be thereto entitled, or to any subsequent guardian, should such court so direct, then this obligation shall be void,’ etc.
To hold that suit could only be brought upon such a bond in the name of the people for the use of the three minors, and not for the use of either or any one of them who may have been wronged, would be to hold that a guardian could squander the estate of one ward without imposing any liability upon his sureties, provided he kept the estates of the others intact. Chapter 47 of Revised Statutes of 1845, entitled ‘Guardian and Ward,’ provided (section 15) that, ‘in all cases of any person being appointed guardian for more than one ward at one time, the judge of probate shall include all in one bond;’ and also provided (section 5) that such ‘bond shall be taken to the people,’ etc., ‘for the use of the minor, but may be put in suit from time to time in the name and to the use and benefit of any person entitled by a breach thereof, until the whole penalty shall be recovered thereon.’ The law of 1845 was in force when the bond sued on in this case was executed. The act of 1872 upon the same subject, in force when this suit was brought, provides that ‘when any person shall at the same time be appointed guardian for several minors, the court may, if the estate shall be so situated as to make it more convenient or advantageous to the interest of the ward, include all in one bond,’ (section 10;) and also that ‘bonds may be put in suit in the name of the people,’ etc., ‘to the use of any person entitled to recover on a breach thereof,’ (section 11.)
The language of these statutes clearly authorizes a suit for the use of one ward who may be entitled to recover, although the bond may be that of the guardian of several wards. He is not merely the joint guardian of all, but the separate guardian of each. The death of one ward does not relieve him of responsibility as the guardian of each of the survivors.
It is next objected that, before suit could be brought on this bond, a devastavit should have been established. We do not think that this was required. The first breach assigned in the declaration is that on April 17, 1877, the county court ordered the guardian to render a full account of his guardianship, and that he did not do so. The second breach is that the said Ida was entitled to receive a certain sum from her guardian on July 16, 1877, when she became of age, and that he converted such sum to his own use, and failed to pay it over to her. If these breaches were established by the evidence, upon which question the judgment of the appellate court is final, a recovery against the surety was authorized. We have held that it is no defense to such a declaration to say that ‘no adjustment was ever had of the accounts of the guardian by the probate court.’ It is not necessary that the...
To continue reading
Request your trial
-
Theodosis v. Keeshin Motor Exp. Co.
...v. McIntyre, 360 Ill. 382, 196 N.E. 506; showing of devastavit abolished as condition precedent to action on guardian bond Winslow v. People, 117 Ill. 152, 7 N.E. 135; and notice requirement in ejectment proceeding. Woods v. Soucy, 166 Ill. 407, 47 N.E. Whatever rights defendants have with ......
-
Nagle v. Robins
...v. Dunham, 12 N. W., 310; Slusher v. Hammond, 63 N. W., 185; Gray v. Fox, 1 N. J. Eq., 259; Shepherd v. Newkirk, 21 id., 302; Winslow v. People, 117 Ill. 152; Brown Wright, 39 Ga. 96; Rogers v. Tullos, 51 Miss. 685; Zimmerman v. Frailey, 17 A. 561; Hayes v. Ins. Co., I. L. R. A., 303; 42 Ca......
-
Taylor Coal Co. v. Indus. Comm'n
...Southeastern Railway Co. v. Hall, 67 Ill. 99;Holcomb v. People, 79 Ill. 409;Dobbins v. First Nat. Bank, 112 Ill. 553;Winslow v. People, 117 Ill. 152, 7 N. E. 135;Illinois Central Railroad Co. v. City of Wenona, 163 Ill. 288, 45 N. E. 265;Woods v. Soucy, 166 Ill. 407, 47 N. E. 67;People v. C......
-
Merlo v. Johnston City & Big Muddy Coal & Mining Co.
...may be applied to pending causes. People v. Peacock, 98 Ill. 172,Wood v. Child, 20 Ill. 209,Smith v. Bryan, 34 Ill. 364,Winslow v. People, 117 Ill. 152, 7 N. E. 135, and Woods v. Soucy, 166 Ill. 407, 47 N. E. 67, are all cases involving statutes which merely changed the procedure, and it wa......